BEIJIN G BEIRUT BR U SSE L S M OSCOW NEW DELHI WAS H INGTO N

THE NUCLEAR
BAN TREATY
What Would Follow?
George Perkovich
CarnegieEndowment.org

M AY 2 0 1 7
THE NUCLEAR
BAN TREATY
What Would Follow?
George Perkovich
 2017 Carnegie Endowment for International Peace. All rights reserved.

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CP 309
Contents

About the Author v

Summary 1

Introduction 3

Why the Nuclear Prohibition Treaty Became Inevitable 4

Why the Prohibition Treaty Is Inadequate 9

What Should Be Done? 15

Notes 19

Carnegie Endowment for International Peace 22

About the Author

George Perkovich is the Ken Olivier and Angela Nomellini Chair and a vice
president for studies at the Carnegie Endowment for International Peace. He
works primarily on nuclear strategy, nonproliferation, and disarmament issues.
He has been a member of the National Academy of Sciences Committee on
International Security and Arms Control as well as the Council on Foreign
Relations Independent Task Force on U.S. Nuclear Weapons Policy, and
he was a principal adviser to the International Commission on Nuclear
Nonproliferation and Disarmament, a joint initiative of the governments of
Japan and Australia. Perkovich is the author of the prizewinning book, Indias
Nuclear Bomb; co-author with James Acton of a 2008 Adelphi Paper, Abolishing
Nuclear Weapons; and co-author with Toby Dalton of Not War, Not Peace?
(Oxford University Press, 2016).

***

This paper was prepared for the Assessing the International Nuclear Agenda
Conference (June 1517, 2017), organized by the University of International
Relations, located in Beijing, and the Belfer Center for Science and International
Affairs, part of Harvard Universitys John F. Kennedy School of Government.

v
Summary
In May 2017, negotiators at the United Nations introduced a draft convention
to prohibit the possession of nuclear weapons, as a way to hasten progress toward
eventual nuclear disarmament, as called for in the Nuclear Non-Proliferation
Treaty (NPT). All the nuclear-armed states except North Korea have boycot-
ted the negotiations, along with many U.S. allies. Unfortunately, the good
motives behind the treaty do not mean it will enhance international security,
prevent nuclear proliferation, or facilitate actual nuclear disarmament. It may
even have unintended consequences that make these goals harder to achieve.
Yet there are steps that nuclear-armed states could take, perhaps nudged along
by their allies, to help heal rifts that the proposed ban treaty hashighlighted.

Rationale and Potential Pitfalls

International support for a nuclear prohibition treaty became nearly inevi-
table, largely due to nuclear-armed states failure to demonstrate good
faith in pursuing nuclear disarmament under the NPT.

Non-nuclear-weapon states are in the majority; most of them do not accept

this lack of progress toward disarmament and are reluctant to be held hos-
tage to the potentially nuclear wartriggering decisionmaking of leaders
such as Kim Jong-un, Vladimir Putin, and Donald Trump.

Despite the legitimate concerns that prompted it, the ban treatys simplic-
ity and corresponding lack of rigorous verification and enforcement provi-
sions are cause for concern. By driving wedges between democratic allies, a
nuclear ban treaty may inadvertently weaken deterrence of nondemocratic
governments that would be less constrained by public opinion and the
norms reflected in the treaty. This, in turn, would make actual nuclear
disarmament less likely.

Bridging the Ban Treaty Divide

Nuclear-armed states could individually or with other actors take
nuclear disarmament obligations more seriously by specifyingtheoreti-
cally, for nowhow they would design a verifiable, enforceable nuclear
disarmamentregime.

The process of designing a prototype disarmament regime would address

vital questions that the ban treaty avoids: which activities, materials, and

1
2|The Nuclear Ban Treaty: What Would Follow?

facilities useful for developing and producing nuclear weapons must be

prohibited, and how will dual-use activities be managed and monitored?
What national and international transparency and verification protocols
would disarming states require, and what organization(s) should and could
enforce such a regime?

An international debate is needed on the conditions, if any, under which

the first use of nuclear weapons could be necessary and legitimate. States
could stimulate such a debate by seeking to bring the use of nuclear weap-
ons under the jurisdiction of the International Criminal Court.
Introduction
On March 27, 2017, negotiations began at the United Nations (UN) in New
York to draft a treaty to negotiate a legally binding instrument to prohibit
nuclear weapons, leading towards their total elimination.1 Forty-eight coun-
tries in December 2016 registered their lack of support for this undertaking,
either by voting no or abstaining. This included all of the worlds nuclear-
armed states except North Korea. Most of the opposing and abstaining states
rely to some degree on nuclear deterrence extended by their allies or security
partners. However, 113 countries voted to make these negotiations happen.
Proponents of a prospective prohibition treaty argue that dramatic action
is needed to speed up achievement of the ultimate goal of global nuclear dis-
armament. They argue that there has been little perceptible progress on the
multilateral nuclear disarmament pillar under the NPT,2 and that outlawing
nuclear weapons is a moral and humanitarian imperative.3 Further, they posit
a legal requirement for nuclear disarmament based on their reading of Article
VI of the Nuclear Non-Proliferation Treaty (NPT) and the 1996 International
Court of Justice advisory opinion on the Legality of the Threat or Use of
Nuclear Weapons. Proponents believe that a prohibition treaty ultimately will
engender international pressure that will compel nuclear-armed states and oth-
ers that rely on nuclear deterrence to conform to the new global norm.4
Yet opponents and skeptics fear that the dynamics surrounding the prohibi-
tion treaty will distract attention and effort from the nonproliferation regime
that has helped prevent nuclear war since 1945, and that has prevented
beyond early expectationsthe proliferation of nuclear weapons to more states
and to terrorist organizations. In boycotting the negotiations, the French,
United Kingdom (UK), and U.S. governments noted that the proposed ban
fails to take into account the requisite security considerations and . . . will not
eliminate nuclear weapons.5 Japan worries that efforts to make such a treaty
without the involvement of nuclear-weapon states will only deepen the schism
and division not only between nuclear-weapon states and non-nuclear-weapon
states, but also among non-nuclear-weapon states.6
From sharply divergent perspectives, then, states and attentive civil society
organizations see a prohibition treaty as a significant challenge to the global
nuclear order that was built by fits and starts from the ill-fated Baruch Plan of
1946, through the creation of the International Atomic Energy Agency (IAEA)
in 1957, the completion of the NPT in 1968, and the beginning of the nuclear
arms control process with the Strategic Arms Limitation Treaty (SALT I) in
1972. (Other important events, agreements, and export control arrangements
also augmented this ordering process.)

3
4|The Nuclear Ban Treaty: What Would Follow?

This paper proceeds in three parts. First, it seeks to explain why the
nuclear prohibition initiative became inevitable and should be treated seri-
ously and respectfully. Second, it suggests why and how a prohibition treaty
resembling the draft released on May 22, 2017, will be inadequate to achieve
what its proponents wish, and could even undermine the prospects of actual
nuclear disarmament. Finally, it suggests what could be done now and in
the future to reconcile the aspirations of prohibitionists with those who fear
unwelcomeconsequences.

Why the Nuclear Prohibition

Treaty Became Inevitable
The foundation of the global nuclear order is the NPT. This foundation,
though, contains a fissurein text and politics. The treaty legally allows for
the possession of nuclear weapons by the five states that had tested a nuclear
explosive before January 1, 1967, while obligating all other
signatories not to acquire nuclear weapons. At the same
Article VI has long been a time, Article VI of the treaty obligates each party to pur-
contentious issuea fissure. sue negotiations in good faith on effective measures relat-
ing to cessation of the nuclear arms race at an early date
and to nuclear disarmament, and on a treaty on general
and complete disarmament under strict and effective international control.7
This reflected the political and moral need to link the vast majority of states
eschewal of nuclear weapons to the small minoritys willingness to eventually
eliminate their nuclear weapons. The proposed prohibition treaty makes this
link more explicit than it ever has been.
Of course, Article VI has long been a contentious issuea fissure. Some
states and experts have argued that the NPT only obligates good faith pur-
suit of negotiations on nuclear disarmament, but cannot and does not require
a particular outcomethat is, an agreement. Moreover, Article VI envisions
such negotiations in the context of a treaty on general and complete disar-
mament.8 These perceived disarmament requirements are much less precise
than the treatys clauses related to nonproliferation, which, the argument goes,
affirms that the treatys central operative purpose is nonproliferation.9
Yet, while lawyers may endlessly debate the legal meaning and implications
of Article VI, the matter was settled politically in 1995 when the treaty was
due to expire unless the parties decided to extend it at a Review and Extension
Conference. At the conference, the nuclear-weapon states persuaded the
parties to extend the NPT indefinitely. The resolution extending the treaty
also included an agreement entitled Principles and Objectives for Nuclear
Non-Proliferation and Disarmament. In this document, nuclear-weapon
States reaffirm their commitment, as stated in article VI, to pursue in good
faith negotiations on effective measures relating to nuclear disarmament.
 George Perkovich|5

Thedocumentalso declared that fulfillment of Article VI required the deter-

mined pursuit by the nuclear-weapon States of systematic and progressive
efforts to reduce nuclear weapons globally, with the ultimate goal of eliminat-
ing those weapons, and by all States of general and complete disarmament
under strict and effective international control.10
The political obligation to pursue nuclear disarmament was then affirmed
and detailed in Review Conferences in 2000 and 2010. At the 2000 confer-
ence, thirteen steps related to nuclear disarmament were specifically called for.
An action plan was agreed upon at the 2010 conference, enumerating twenty-
two actions to be taken under the heading of disarmament.11

The Resistance of Nuclear-Armed States

The effort to negotiate a prohibition treaty represents a political-legal reaction
to the nuclear-weapon states failure to fulfill these political commitments to
genuinely seek nuclear disarmament. If the vagueness of Article VIs language
reflects the preferences of the two disproportionately powerful states that drove
the negotiation of the NPTthe United States and the Soviet Unionthen
the prohibition treaty reflects the preferences of a majority of states in the non-
polar or multipolar twenty-first century. These states know they cannot force
the nuclear-armed states to give up their nuclear arsenals. They can, though,
create political and moral pressures to delegitimize these weapons. More mate-
rially, the majority can frustrate the nuclear-armed states desires and interests
in strengthening the global nonproliferation regime. If the nuclear-weapon
states persist in denying or obfuscating a legal obligation to pursue disarma-
ment, the others can politically undermine the enhancement of legal obliga-
tions to make proliferation more difficult.
In a 2009 speech in Prague, then U.S. president Barack Obama recognized
this challenge. He affirmed the soundness of the basic bargain that most people
and states see at the heart of the nuclear order: Countries with nuclear weapons
will move towards disarmament, countries without nuclear weapons will not
acquire them, and all countries can access peace-
ful nuclear energy.12 The enthusiastic reaction of
most of the world affirmed this logic. Yet lead-
The subsequent effort to negotiate a
ers of non-nuclear-weapon states whom Obama prohibition treaty represents a political-
might have expected to join him in advancing the legal reaction to the nuclear-weapon states
disarmament-nonproliferation agenda turned to failure to fulfill these political commitments
other issues more important to them.
to genuinely seek nuclear disarmament.
Meanwhile, the security establishments of
other nuclear-armed states found Obamas agenda
threatening. Russian leaders thought Obamas call was a plot that, if imple-
mented, would reinforce the military advantage the United States would have
in a world without nuclear weapons. French officialdom privately expressed
alarm that such talk would invite unrealistic and, to them, unacceptable
6|The Nuclear Ban Treaty: What Would Follow?

demands for hasty disarmament. Israeli leaders shared this view. Pakistan con-
tinued to augment its nuclear arsenal. North Korea did the same. Meanwhile,
the defense and nuclear establishments of the United States mobilized to
defend the nuclear-weapon enterprise from the misguided president, while the
Republican Party generally denounced him for being dangerouslynave.
This multifaceted resistance has been effective. Since the 2010 New Strategic
Arms Reduction Treaty (START)itself a modest achievement in disarma-
ment termsno new agreements have been reached to reduce nuclear arms,
curtail nuclear arsenal modernization, or end production of fissile materials for
nuclear weapons. Various countries and organizations have produced scorecards
to evaluate fulfillment of the disarmament-related mea-
sures called for in the 1995, 2000, and 2010 NPT Review
Nongovernmental organization leaders and Conferences. According to a well-researched assessment by
a few statesled by Austria, Mexico, and the nongovernment organization Reaching Critical Will,
Norwaysought to refocus attention to the as of 2015, clear forward movement has been made on
humanitarian consequences of nuclear war. only five of the twenty-two actions called for in 2010,
while limited progress has been made on six others.13
Worse, arguably, Russia violated the Intermediate-Range
Nuclear Forces Treaty of 1987, which remains the most far-reaching nuclear
arms reduction treaty ever negotiated. Meanwhile, all of the nuclear-armed
states have undertaken programs to modernize, and in some casesChina,
India, North Korea, and Pakistanexpand, their nuclear arsenals.
In this environment, it was inevitable that states and civil society organiza-
tions dedicated to preventing nuclear war and eliminating nuclear weapons
would seek new ways to reverse unwelcome trends and fulfill the aspirations
and promises of nuclear disarmament. If nuclear-armed states and their allies
argued that security interests preclude new disarmament-related steps, then
others naturally would seek countervailing arguments.
Nongovernmental organizations and a few statesled by Austria, Mexico,
and Norwaysought to refocus attention to the humanitarian consequences
of nuclear war. The humanitarian argument highlights studies that suggest that
even what might be termed a limited exchange of nuclear weapons, involving
 George Perkovich|7

one hundred fission devices, would or could alter climatic conditions suffi-
ciently to cause a global famine affecting more than 1 billion people.14 Such
use of nuclear weaponslet alone larger attacks involving more destructive
deviceswould harm people and the environment in ways that, depending on
the circumstances, could violate the basic principles of international humani-
tarian law. These principles require discrimination of military from civilian
targets, proportionality, and avoidance of unnecessary suffering.
Of course, it can be argued plausibly that not all uses of nuclear weapons
would cause a humanitarian disaster. For example, a state in a conflict could
for demonstration purposes detonate a nuclear weapon underground or at sea,
or against a naval convoy or a desert air base far removed from civilians. It is
not impossible that such use would succeed and de-escalate a conflict with-
out a series of nuclear exchanges. Nevertheless, the focus on humanitarian
consequences has put the burden on defenders of nuclear weapons to dem-
onstrate whether and how any use of nuclear weapons would stay limited
and would not escalate. The nuclear-armed states have not engaged in such
discussionsordebate.
Defenders of nuclear weapons also have failed to engage the humanitarian
movement in serious arguments about the role of nuclear weapons in deterring
or defeating grave threats to national and international security. Advocates of
nuclear prohibition seek to keep the focus on humanitarian consequences of
nuclear weapons as a way to transcend security arguments about such sce-
narios. They argue that the use of nuclear weapons would be a security disas-
terwhich is fair enoughbut they neglect to address situations in which
non-nuclear means are unable to stop an aggression that threatens a nations
existence. Large conventional forces from China, India, Russia, or the United
States, for example, could threaten significant incursions into less powerful
states. A state could use illicitly acquired biological weapons to devastate an
adversary population. Or, under a global nuclear disarmament regime, a state
could clandestinely retain or acquire nuclear weapons and threaten to use them
against disarmed adversaries.
8|The Nuclear Ban Treaty: What Would Follow?

The Argument for Prohibition

The failure of high-level leaders in states that rely on nuclear deterrence
directly or by extensionto open serious debates on such scenarios have made
a simple prohibition treaty inevitable. When heads of state become involved
in an issue, multiple agencies within their governments are mobilized to study
issues and make recommendations. These include defense ministries, military
services, and intelligence agencies. These agenciesaccurately or inaccurately,
wisely or misguidedlyinject security concerns into deliberations. Yet debates
over the humanitarian movement have largely been ignored by top leaders and
left to a few officials in foreign ministries to manage. These officials often are
relatively ill-equipped to contest and complicate the moral and political argu-
ments surrounding the humanitarian consequences of nuclear use. Of course,
it is very difficult for anyone to convincingly say how nuclear use would (as
distinct from could) be kept limited and would not lead to humanitarian disas-
ter. Many diplomats are not well prepared to lead discussions of military sce-
narios in which non-nuclear forces might be inadequate to defeat conventional
or biological attacks onfor instancethe Russian periphery, the Korean
Peninsula, the Taiwan Strait, or the Indo-Pakistani border.
Apart from humanitarian grounds, concerns about fairness or equity also
bolster arguments for prohibition. In terms of political and moral equity, the
distinction between one nuclear weapon and zero is all that matters. States
that have one are in a fundamentally different positionfor good or illthan
those that have zero. It is fine and correct for the United States and Russia
to say that they used to collectively deploy at least 10,000 strategic nuclear
weapons, and now they only deploy approximately 3,200.15 But for most of
the worlds states, this is not a winning argument. It is a bit like a slaveholder
saying that he used to have one hundred slaves, but now only has thirty-two. If
slavery is bad, any number greater than zero is wrong. The
same goes for nuclear weapons in the thinking of much of
In terms of political and moral equity, the world.
the distinction between one nuclear The perceived character of leaders such as North Koreas
weapon and zero is all that matters. Kim Jong-un, Russias Vladimir Putin, and the United
States Donald Trump (among others) adds urgency to
the campaign to prohibit and eliminate nuclear weapons.
Many citizens and states find it unacceptable that these men have their fin-
gers on the nuclear button and hold the fate of the world in their minds and
hands. Only nuclear weapons give a few leaders of a few countries the capacity
to immediately destroy the lives of so many innocent people and states and
cause lasting environmental damage. Because other states cannot determine
the judgment of such individuals and cannot control the extent and effects of
a nuclear war these men might conduct, the only way to escape being hostage
to them is to ban and, hopefully, abolish nuclear weapons.
 George Perkovich|9

Prohibitionand more broadly, eliminationof nuclear weapons also

gains urgency from the basic sense that these weapons cannot be retained
forever without being used someday. As the distinguished British strategist
Lawrence Freedman wrote eight years ago, The case for
abolition . . . is that it is hard to believe that the past 60
years of self-restraint can continue for the next 60 years.16
There are understandable, often excellent
Deterrence optimistsand those who believe in the reasons to seek the elimination of nuclear
effectiveness of the nuclear taboocould retort that, as weapons. The dismissive, disrespectful attitudes
the period of nonuse of nuclear weapons lengthens, the and behaviors of the nuclear-armed states . . .
probability of nuclear war in the future declines. Yet most
add fuel and passion to the prohibition cause.
analysts agree that if and as the number of actors possess-
ing nuclear weapons grows, and the combinations of states
in confrontational relationships increase, the risk of deterrence failure does
too. A strong nonproliferation regime, among other things, is necessary to
contain this risk. Yet, non-nuclear-weapon states are now reluctant to further
strengthen the nonproliferation regime unless their demands for nuclear dis-
armament are met.
In short, there are understandable, often excellent reasons to seek the elimi-
nation of nuclear weapons. The dismissive, disrespectful attitudes and behav-
iors of the nuclear-armed states toward proponents ofnuclear disarmament add
fuel and passion to the prohibitioncause.

Why the Prohibition Treaty Is Inadequate

Unfortunately, the good rationales and understandable motives that animate
the prohibition movement do not necessarily add up to sound or effective
action. However laudable the intentions behind the prohibition movement, the
treaty it appears likely to produce will be inadequate to accomplish important
objectives and may even undermine the prospects of nuclear disarmament.
Proponents acknowledge that the prohibition treaty will not cause a single
weapon to be dismantled. A nuclear-weapons prohibition will not magically
make nuclear-armed and nuclear-alliance states give up the bombbut it will
make it a less attractive weapon to maintain or pursue, and provide states with
more incentives for elimination.17
Proponents hope that the weight of more than 120 states demand for prohi-
bition will morally and politically inhibit anyone from using nuclear weapons.
North Korea was the only nuclear-armed state that voted in favor of negotiat-
ing a prohibition treaty. Yet, as most advocates of prohibition would acknowl-
edge, it is extremely difficult to imagine that Kim Jong-un, faced with the loss
of his regime and perhaps control over his country, would decide not to use
nuclear weapons because there is a treaty prohibiting them.
 10|The Nuclear Ban Treaty: What Would Follow?

So, too, if in response to Russian aggression in, say, Estonia, North Atlantic
Treaty Organization (NATO) conventional forces were to bomb air force and
army installations in Russia and drive Russian forces back, President Putin
might or might not use tactical nuclear weapons to de-escalate the conflict, so to
speak. Either way, it is difficult to imagine that a prohibition treaty that Russia
and other nuclear-armed states did not sign would figure
significantly in his decision. Similarly, if Indian armored
However laudable the intentions behind the forces moved into Pakistan following a major terrorist
prohibition movement, the treaty it appears likely attack on an Indian city, and were inflicting severe dam-
to produce will be inadequate to accomplish age and humiliation on the Pakistan Army, Rawalpindis
important objectives and may even undermine leadership has said it would use nuclear weapons to stop
the Indian advance. This might or might not be what the
the prospects of nuclear disarmament.
Pakistan Army would actually do, but it is difficult to say
how a prohibition treaty would really affect the decision.
At the same time, in any or all of the scenarios just mentioned, a prohibition
treaty would do no harmwith one possible exception. If genuine democracies
felt more obliged to uphold the treaty than nondemocratic governments, then
the balance of resolve in crisis or conflict could tilt to the states less sensitive
to norms. It is difficult now to assess this possibility across a range of potential
regional or global confrontations. Still, the Western nuclear-weapon states and
their allies in Europe and Asia worry that a prohibition treaty could cause or
inflame political dissent within their states and between them. This weakening
of solidarity among democratic allies, ironically and dangerously, could in turn
embolden less affected adversaries such as China, North Korea, and Russia.
This concern can be seen from another angle: the prohibition movement has
not engaged intensively with the nuclear-armed states that are most resistant
to this agenda and that prohibit or tightly control public debate over nuclear
issues. Much of the argumentation regarding humanitarian consequences
of nuclear weapons and prohibition seems directed at the United States, the
United Kingdom (UK), and their allies. In these countries civil society orga-
nizations are free and officials have been more or less willing to engage with
them. Conversely, China, Israel, North Korea, Pakistan, Russia, and to some
extent France have walled themselves off from these debates internationally
and nationally. Yet these states are more determined to retain nuclear weapons
and are more resistant to joining in nuclear-weapon reduction processes than
the United States and the UK have been. (France has undertaken significant
nuclear force reductions and eliminated its nuclear-weapon testing facilities,
even as its resistance to complete nuclear disarmament is clear.)
Proponents of the prohibition treaty should not be expected to travel to
these countries and challenge their officials, as they do in the UK, the United
States, other NATO states, and Japan, for example. Still, the interests and posi-
tions of the most recalcitrant states must be addressed if the prohibition move-
ment is to achieve more than limited, symbolic results. By not making nuclear
 George Perkovich|11

prohibition a significant issue in their bilateral relations with China, France,

India, Israel, Pakistan, and Russia, prohibitionist states make it easier for U.S.
and British officials to question theirseriousness.18

Addressing Non-Nuclear Threats and Responses

Whether or not a prohibition treaty will weaken the defensive resolve of democ-
racies, it will not remove the most ominous threats that trouble the nations
currently relying on nuclear deterrence (including via alliances). Few knowl-
edgeable people believe that nuclear-armed adversaries would launch nuclear
weapons out of the blue. Rather, the primary concern is that some form of non-
nuclear aggression could be initiated, particularly against a weaker state, and
that for the defenders nuclear weapons could, in extreme circumstances, be the
only way to defeat such aggression. The existence of a prohibition treaty could
undermine the credibility of nuclear deterrence of such aggression. (Of course,
the threat to use nuclear weapons in defense raises the risks of escalation to
all-out nuclear war, which would leave everyone worse off and likely cause
humanitarian disaster. This is the horrible paradox of nuclear deterrence.)
Proponents of a ban treaty tend to downplay threats of such conventional
aggression. Instead, and understandably, they highlight the grave risks of escala-
tory nuclear war. But the nuclear prohibitionists ignore another threat that may
become more serious in coming years: that of biological warfare. Proponents
of a nuclear ban generally assume that the Biological
Weapons Convention (BWC) of 1972 has removed the
threat of biological warfare, and that the BWC provides If genuine democracies felt more obliged
a laudatory example of the benefits a nuclear prohibition to uphold the treaty than nondemocratic
could bring. governments, then the balance of
Yet, despite the BWC, several states have maintained resolve in crisis or conflict could tilt to
robust programs that enable them to produce and perhaps
the states less sensitive to norms.
use biological weapons. China, Iraq (before 1995), North
Korea, and Russia are the most obvious examplesand
those countries might say the same for the United States. Among other things,
this points to the problem inherent in the BWCs lack of verification and the
uncertainties that arise regarding technological capabilities that can be used
for civilian and military, and defensive and offensive, purposes. The BWC rein-
forced long-standing norms against bioweapons and facilitated cooperation
to prevent their proliferation and use. Still, as noted in a recent book-length
study by David Malet, Biotechnology and International Security: It remains a
more restrictive, but perhaps no more effective, version of the Geneva Protocol
[of 1925]. Despite the growth of military biotech programs, no compliance
mechanisms or formal organizations exist for monitoring bioweapon research
andstockpiles.19
Meanwhile, like the BWC, the proposed nuclear prohibition treaty appears
unlikely to entail verification. Leading technological countries (and companies)
12|The Nuclear Ban Treaty: What Would Follow?

are in the early stages of a breathtaking revolution in biotechnology and

genomic engineering. Empowered by information technology and robotics,
the capacity to cheaply design and produce new organisms and to alter human
biological processes will become increasing widespread. While new biotech-
nologies will likely provide enormous benefits for agriculture, medicine, and
manufacturing, as well as mitigating effects of climate change, new techniques
will also be used for military purposes that could be benign or malignthat
is, defensive or offensiverespectively.
Indeed, the prospect of malign uses drives states such as China, Russia,
the United States, and others to extensively fund defense organizations, com-
mercial enterprises, and university research labs to stay at the forefront of this
technology in order to defend against and blunt the effects of potential bio-
logical warfare. All of this occurs with the BWC in place. (The BWC focuses
on pathogens and toxins, whereas twenty-first century biotechnologies could
harm without relying on disease transmission.) In contemplating the potential
prohibition of nuclear weapons, and even an eventual nuclear disarmament
regime, states and civil society should think hard about
how similar defensive contingency preparation to deal
States and experts who believe that nuclear with revived nuclear threats would be managed. This is
weapons help deter major acts of aggression not being discussed at all in the negotiations on a nuclear
and inspire states not to escalate conflicts prohibitiontreaty.
argue with some reason that prohibition There is another reason for relating the biological weap-
puts the cart before the horse. ons issue to the nuclear negotiations: the nuclear-armed
states that subscribed to the BWC did so in part because
they would retain nuclear weapons to deter and potentially
respond to major biological attacks. The retention of nuclear deterrence amelio-
rated concerns about the absence of verification for BWC adherence. However,
if and when total nuclear disarmament becomes a serious undertaking, the
potential threats emanating from the biotechnology revolution will assume
even greater urgency. At that point, among other things, the inadequacies of
the now-extolled BWC will weigh heavily onleadingstates.
Prohibiting the possession and use of nuclear weapons without redressing
the circumstances that make states retain these weapons could be emblematic
of two things. First, as proponents intend, it could symbolize rejection of the
potentially murderous hostage relationship that the few nuclear-armed states
impose on a large number of others. Second, it could affirm what some see
as the realist view that treaties are not worth the paper they are written on if
adequate power is not available and determined to verify and enforce them.
To put the second point a different way, states and experts who believe that
nuclear weapons help deter major acts of aggression and inspire states not to
escalate conflicts argue with some reason that prohibition puts the cart before
the horse. If use of nuclear weapons is likely to precede such aggression involving
 George Perkovich|13

conventional forces or a biological attack, then it would make sense to focus

first on nuclear prohibition. But if nuclear weapons would most likely be used
after an act of major aggression is under way and there is no other viable means
to stop it, then it makes more sense to focus first on finding alternative ways to
deter or defeat such aggression.
States have a recognized right of self-defense. In this regard, it is appropriate
to quote at length the International Court of Justices 1996 advisory judgment:

95. . . . The principles and rules of law applicable in armed conflict at the
heart of which is the overriding consideration of humanity make the conduct
of armed hostilities subject to a number of strict requirements. Thus, methods
and means of warfare, which would preclude any distinction between civil-
ian and military targets, or which would result in unnecessary suffering to
combatants, are prohibited. In view of the unique characteristics of nuclear
weapons . . . the use of such weapons in fact seems scarcely reconcilable with
respect for such requirements. Nevertheless, the Court considers that it does
not have sufficient elements to enable it to conclude with certainty that the use
of nuclear weapons would necessarily be at variance with the principles and
rules of law applicable in armed conflict in any circumstance.

96. Furthermore, the Court cannot lose sight of the fundamental right of
every State to survival, and thus its right to resort to self-defence, in accor-
dance with Article 51 of the Charter, when its survival is at stake.

Nor can it ignore the practice referred to as policy of deterrence, to which an

appreciable section of the international community adhered for many years. . . .

97. Accordingly, in view of the present state of international law viewed as a

whole . . . and of the elements of fact at its disposal, the Court is led to observe
that it cannot reach a definitive conclusion as to the legality or illegality of the
use of nuclear weapons by a State in an extreme circumstance of self-defence,
in which its very survival would be at stake.20

If circumstances can be envisioned wherein a state or alliance cannot defeat

an act of aggression by non-nuclear means, then do proponents of nuclear pro-
hibition essentially require states in such circumstances to accept defeat, pos-
sibly tantamount to suicide? Is this legally and politically plausible (insofar as
states that choose not to join such a treaty are not bound by it)? One could
counter that the international community collectively ought to be willing and
able to rally to a threatened states defense and thereby defeat an instance of
major aggression. Yet the current international systems dependence on the UN
Security Council to authorize such action is highly problematic. Most of the
states capable of mounting overwhelming conventional aggression retain the
power to veto Security Council resolutions.
 14|The Nuclear Ban Treaty: What Would Follow?

The Challenge of Eliminating Nuclear Weapons

Turning to the elimination of nuclear weapons, proponents of the prohibi-
tion treaty acknowledge that the envisioned successor disarmament treaty will
be difficult to negotiate and implement. But this merely restates the obvious
and does not advance the cause. Officials and experts in nuclear-armed states
appreciate the enormous difficulties of defining what security-enhancing disar-
mament would entail, and whether and how it could be verified and enforced.
Yes, all nuclear weapons would have to be dismantled. But what would
then be done with the fissile materials taken from them? Warhead disassembly
has never been verified (aside from the unique case of
South Africa). Inherent uncertainties surround inven-
Without offering guidance on genuine challenges tories of fissile materials. Given these uncertainties, by
in designing and effecting nuclear disarmament, what means would the world be reassured that a state
authors of a prohibition treaty may actually was not secretly retaining weapons-usable stockpiles?
cloud the prospects of future disarmament. Would states be allowed to retain ballistic missiles? If
so, under what conditions? What would be done with
nuclear-weapon research and development facilities,
capabilities, and trained personnel? Would researchers and facilities adept at
nuclear-weapon design and experimentation be monitoredincluding in uni-
versitiesand if so, how? How would the management and safeguarding of
civilian fuel-cycle facilities and activities need to be revised in order to bolster
confidence that no one would cheat on a global disarmament regime?
Without offering guidance on these genuine challenges in designing and
effecting nuclear disarmament, authors of a prohibition treaty may actually
cloud the prospects of future disarmament. What would happen if and when
nuclear-armed states seriously took up the challenge and developed what they
judged to be a viable disarmament regime, but this regime required much more
extensive and intrusive global monitoring of nuclear-related facilities and per-
sonnel than exists today? Would the hundred-plus supporters of the prohibition
treaty subscribe to these requirements and share in the costs? What if viable
disarmament required centralization of all civilian nuclear fuel-cycle activi-
ties under the control of a handful of formerly nuclear-armed states? Would
todays non-nuclear-armed states with civilian nuclear aspirations accept this?
Without some sense of how major disputes over the design of a world without
nuclear weapons would be resolved, many states will be reluctant to pursue
this agenda. Unfortunately, these kinds of issues have not been addressed in
negotiations of the prohibition treaty.
Finally, the prohibition movement suggests or implies that it reflects the
demands of a large majority of the world and therefore carries a democratic
imperative. This is true on one level, yet may be problematic in two ways,
one of which is not obvious. First, the states that favor a prohibition treaty do
compose more than 60 percent of the worlds countries. Yet, in terms of popu-
lation, more than 60 percent of the world population lives in states that did
 George Perkovich|15

not support this undertaking. This merely represents the long-standing ten-
sion between the international state system (in which each state has an equal
vote) and international politics (wherein the population, political influence,
and economic and military power of states vary enormously, and governments
generally prioritize internal interests over global ones). In this sense, democ-
racy within states (or merely state sovereignty) collides with democracy among
states. More than majoritarian democracy, the issue seems better cast as one of
respecting the rights of the large, innocent minority of the worlds population
who could be subjected to death and environmental peril by the actions of
one or more nuclear-armed states that are allowed by other big states to retain
and use these weapons without subscribing even to conditions laid out by the
International Court of Justice in 1996.
Second, there is at least some possibility (risk) that if the prohibition treaty
engenders significant debate in states that currently rely on nuclear weapons
(directly, or indirectly via alliances), governments could mobilize security
arguments against the treaty in ways they have not to date. If polls or other
gauges of national opinion indicated that a large minority or a majority sup-
ported government positions, reliance on nuclear weapons could be affirmed
in ways that were not apparent before the UN vote to negotiate a treaty. The
prohibition issue has not been very publicly salient or debated in many of these
countries. In countries that compose more than half of the worlds popula-
tionChina, France, India, Pakistan, Russia, South Korea, and the United
States among themit is probable that public opinion (however ascertained)
would not favor the treaty. This could have the unintended and regrettable
effect of confirming these governments reliance on nuclear weapons and eas-
ing pressure on them to pursue disarmament measures.

What Should Be Done?

The catastrophic dangers posed by nuclear weapons, and the attitudes and
behaviors of nuclear-armed states regarding disarmament, have made the
prohibition movement inevitable. At the same time, the
prohibition treaty now being negotiated fails to address a
number of legitimate, vital concerns of states facing large-
Nuclear-armed states will not credibly meet
scale security threats. So what is to be done? their disarmament obligations unless and
Clearly, nuclear-armed states and others who continue until they seriously define what a feasible,
to rely on extended nuclear deterrence must devote more comprehensive, verifiable, and enforceable
serious thought and action to nuclear disarmament. The
nuclear disarmament regime would entail.
2000 and 2010 NPT Review Conferences specified well-
known incremental steps that would manifest progress
toward nuclear disarmament. States know how to take these steps, whether
the number is thirteen or twenty-two; what they have lacked is political will.
16|The Nuclear Ban Treaty: What Would Follow?

But beyond the taking of well-marked incremental steps, nuclear-armed

states will not credibly meet their disarmament obligations unless and until
they seriously define what a feasible, comprehensive, verifiable, and enforce-
able nuclear disarmament regime would entail. Chris Ford, now a senior offi-
cial in the Trump administration, has made the most trenchant conservative
arguments that the legal requirement for disarmament is quite narrow. Yet he
acknowledges that there is a requirement to pursue negotiations in good faith
on effective measures relating to cessation of the nuclear arms race . . . and to
nuclear disarmament.21 It is difficult to see how the nuclear-weapon states,
individually or collectively, have met or could meet this requirement if they
have not developed models of what nuclear disarmament should entail.
Designing a model nuclear disarmament regime does not require promises
in advance to accede to and implement it. States commonly design futuristic
weapons systems without deciding in advance to actually develop, procure,
and deploy them. Why cant they do the same regarding nuclear disarma-
ment? States could do this individually, bilaterally, and/or multilaterally. They
could do it at classified levels and in the open, solely with
officials or in collaboration with nongovernmental experts.
The nuclear disarmament treaty that (Indeed, the Carnegie Endowment has done this in a proj-
the prohibition treaty will call for ect to model a firewall that distinguishes purely peaceful
must be enforceable or else nuclear- nuclear programs from military ones, and provides insights
armed states will not agree to it. on how to manage and monitor dual-use activities. ) The
22

core questions to be answered are: How should nuclear dis-

armament be defined? What capabilities, facilities, materi-
als, and activities should it prohibit and allow? How could potentially dual-use
capabilities, facilities, materials, and activities be verified and monitored?
Finally, how would such a regime be enforced? It seems illegitimate for states
to argue that they are even intending to pursue negotiations toward nuclear
disarmament in good faith if they are not seriously addressing suchquestions.
To date, no nuclear-armed state has publicly undertaken such a project.23
This betrays these states lack of seriousness about nuclear disarmament. It is
difficult to see how these states will gain credibility in the wider world if they
refuse even to offer blueprints for a nuclear disarmament regime that others
can then discuss and debate. These states cannot be forced to sign and imple-
ment a prohibition treaty, and they certainly cannot be forced to implement a
hypothetical disarmament regime. But reluctance to even take up the design
challenge can only be seen as evidenceof bad faith.
Whether or not they design prototype disarmament regimes, states that say
nuclear deterrence remains necessary for security reasons should more explic-
itly articulate whether and how their policies and actions to redress security
challenges can open the way for progress toward nuclear disarmament. Many
governments are trying to resolve or prevent conflicts on the European periph-
ery, in the Middle East, on the Korean Peninsula, in Northeast Asia, and in
 George Perkovich|17

South Asia. Yet, with few exceptions, leaders do not articulate how the imme-
diate actions they are taking can and should create conditions for reducing reli-
ance on nuclear weapons and reducing their numbers toward zero. It is quite
possible that the actions and outcomes one side seeks will not make adversaries
feel they can reduce reliance on nuclear weapons. But clarifying this aspect of
relations can still be useful in educating the rest of the world about the chal-
lenges of actually achieving the aspirations reflected in the ban treaty.
Special attention should be drawn to the problems of enforcing interna-
tional norms and laws today and in the future. The proposed prohibition treaty
will not have enforcement provisions. But the nuclear disarmament treaty that
the prohibition treaty will call for must be enforceable or else nuclear-armed
states will not agree to it.
The UN Security Council is the recognized international authority to
address threats to peace and security. It also is the body with de facto inter-
national responsibility to redress violations of the NPT and, relatedly, chal-
lenges arising from violations of IAEA safeguards agreements.24 If a nuclear
disarmament convention as called for in the prohibition treaty mandate is to
be enforced, would negotiators assign compliance and/or enforcement to the
Security Council? Or would they seek an alternative that would gain the sup-
port of the states whose performances are to be enforced? If neither option is
attempted or proves possible, then how would a nuclear disarmament treaty
have real effect?
If the UN Security Councils role on this matter is to be superseded, how
would this process be managed, and what effect would this have on the broader
international system? It is difficult to imagine the five NPT-recognized nuclear-
weapon states agreeing to a disarmament regime whose enforcement would be
managed by any entity other than the Security Council, wherein these states
retain veto power. If the Security Council would play a role in enforcing a disar-
mament treaty or convention, then would any one of the nuclear-weapon states
be able to veto responses to its own potential noncompliance with a treaty? If
one of the veto-wielding powers committed aggression against another state
whether or not backed by nuclear threatsand the aggressed-upon state could
not rebuff such aggression without use of nuclear weapons, how would such an
eventuality be treated?
Further, a meaningful prohibition of nuclear weapons and a subsequent dis-
armament treaty must also apply to the other nuclear-armed statesIndia,
Israel, North Korea, and Pakistan. How would these states be persuaded to
adhere to such instruments if five of the nuclear-armed states did have author-
ity to veto enforcement but the others did not?
Beyond issues related to the enforcement of nuclear disarmament, Zia Mian
has suggested a constructive, creative way to focus attention on the legiti-
macy of using nuclear weapons. Mian has proposed that the UN General
Assembly pursue a resolution that, among other things, could call on states to
 support adding the use of nuclear weapons to the mandate of the International
Criminal Court, since the Court already has responsibility for investigating
and punishing crimes against humanity, crimes of genocide, and war crimes.25
While nuclear-armed states likely would resist such a move, debate over such a
proposal would raise the salience of vital issues concerning nuclear doctrines,
operational plans, and force postures. And this would
highlight the importance of preventing the use of nuclear
If ways can be found to reassure . . . nations weapons without prejudice to pursuing their elimination.
that the international community will Many of the questions raised above may be unanswer-
predictably and effectively defend them . . . able. But, if the enterprise intended by proponents of the
then the case for prohibiting and eliminating prohibition treaty process is to have positive material results,
nuclear weapons will become much greater. these questions cannot simply be put aside for someone
else to figure out at some later date. There is no reason why
they cannot and should not begin to be addressed now. For
questions central to the enforcement of international norms and rules go to the
heart of the security concerns that make dozens of countries in Asia, Europe,
and the Middle East wary that major threats can be deterred or defeated with-
out, in extremis, nuclear weapons. If ways can be found to reassure these and
other nations that the international community will predictably and effectively
defend them in time to prevent the illegal infliction of graveeven existen-
tialdamage, then the case for prohibiting and eliminating nuclear weapons
will become much greater.
Notes

1. United Nations Conference to Negotiate a Legally Binding Instrument to

Prohibit Nuclear Weapons, Leading Towards Their Total Elimination- Background
Information, United Nations, https://www.un.org/disarmament/ptnw/.
2. Statement by Patricia OBrien (statement, United Nations, New York, NY, March
2731, 2017), http://www.reachingcriticalwill.org/images/documents/Disarmament-
fora/nuclear-weapon-ban/statements/27March_Ireland.pdf.
3. Maaike Beenes, Institutional Arrangements (statement, United Nations, New York,
NY, March 31, 2017), http://www.icanw.org/campaign-news/ican-statements-to-the-
negotiating-conference/.
4. Ibid.
5. On behalf of France, the UK, and the United States, France delivered an explanation
of their vote against UN Resolution L.41. Please see France, United Kingdom &
United States, Explanation of Vote (statement, United Nations, New York, NY,
October 27, 2016), http://www.icanw.org/wp-content/uploads/2016/10/France-UK-
and-US-EOV.pdf.
6. Statement by H.E. Mr. Nobushige Takamizawa (statement, United Nations, New
York, NY, March 27, 2017), http://statements.unmeetings.org/media2/14683256/
japan.pdf.
7. The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), UN Department
of Disarmament Affairs, http://www.un.org/en/conf/npt/2005/npttreaty.html.
8. Ibid.
9. For outstanding examples of these arguments, see Christopher A. Ford, Debating
Disarmament: Interpreting Article VI of the Treaty on the Non-Proliferation of
Nuclear Weapons, Nonproliferation Review 14, no. 3 (November 2007); and
Christopher A. Ford, Misinterpreting the NPT, New Paradigms Forum, September
30, 2011, published October 24, 2011, http://www.newparadigmsforum.com/
NPFtestsite/?p=1100.
10. Decisions and Resolution Adopted at the 1995 NPT Review and Extension
Conference, Center for Nonproliferation Studies, 2002, http://www.nti.org/media/
pdfs/npt95rc.pdf?_=1316545320.
11. 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of
Nuclear Weapons Final Document Volume I, United Nations, 2010, http://www
.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2010/50%20(VOL.I).
12. Obama Prague Speech on Nuclear Weapons: Full Text (speech, Prague, Czech
Republic, April 5, 2009) published by Huffington Post, May 6, 2009, http://www
.huffingtonpost.com/2009/04/05/obama-prague-speech-on-nu_n_183219.html.
13. Ray Acheson, Its Time to Draw Conclusions, in The NPT Action Plan Monitoring
Report March 2015, ed. Ray Acheson (Geneva: Reaching Critical Will, 2015),
http://www.reachingcriticalwill.org/images/documents/Publications/2010-Action-
Plan/NPTAP_2015_Analysis.pdf. This report details the organizations basis

19
20|The Nuclear Ban Treaty: What Would Follow?

for evaluating fulfillment of each of the 2010 Review Conferences sixty-four

recommended actions in the domains of disarmament, nonproliferation, and nuclear
energy. See also, Elizabeth Philipp and Kelsey Davenport, Assessing Progress on
Nuclear Nonproliferation and Disarmament: Updated Report Card 20132016,
Arms Control Association, July 2016, https://www.armscontrol.org/files/2016_
ReportCard_reduced.pdf.
14. Ira Helfand, Nuclear Famine: A Billion People at Risk, International Physicians for
the Prevention of Nuclear War, http://www.psr.org/nuclear-weapons/nuclear-famine-
report.pdf.
15. Nuclear Weapons: Who Has What at a Glance, Arms Control Association, April 7,
2017, https://www.armscontrol.org/factsheets/Nuclearweaponswhohaswhat.
16. Lawrence Freedman, Nuclear Disarmament: From a Popular Movement to an
Elite Project, and Back Again?, in Abolishing Nuclear Weapons: A Debate, George
Perkovich and James M. Acton eds. (Carnegie Endowment for International Peace,
2009), 145, http://carnegieendowment.org/files/abolishing_nuclear_weapons_debate
.pdf.
17. Beatrice Fihn, The Logic of Banning Nuclear Weapons, Survival 59, no.1 (January
21, 2017): 4350, http://www.tandfonline.com/doi/full/10.1080/00396338.2017.12
82671?scroll=top&needAccess=true.
18. In private, U.S., British, and French officials have remarked more than once how
former Egyptian president Hosni Mubarak and President Abdel Fattah el-Sisi did not
and do not in bilateral meetings raise the issue of a Middle East weapons-of-mass-
destruction-free zone, even as Egyptian diplomats rail about the issue in NPT Review
Conferences. If leaders are not raising the nuclear prohibition issue directly with their
counterparts, little material pressure will be generated.
19. David Malet, Biotechnology and International Security (London: Rowman and
Littlefield, 2016), 38.
20. International Court of Justice, Legality of the Threat or Use of Nuclear Weapons:
Advisory Opinion, July 8, 1996, http://www.icj-cij.org/docket/files/95/7495.pdf.
21. Ford, Debating Disarmament.
22. See Toby Dalton et al., Toward a Nuclear Firewall: Bridging the NPTs Three
Pillars, Carnegie Endowment for International Peace, March 20, 2017, http://
carnegieendowment.org/2017/03/20/toward-nuclear-firewall-bridging-npt-s-three-
pillars-pub-68300.
23. For a nongovernmental example of such an undertaking, see George Perkovich
and James M. Acton, Abolishing Nuclear Weapons, Adelphi Paper no. 396,
International Institute for Strategic Studies, 2008.
24. The IAEA Statute, Article XII.7.C, states: The inspectors shall report any non-
compliance to the Director General who shall thereupon transmit the report to the
Board of Governors. The Board shall call upon the recipient State or States to remedy
forthwith any non-compliance which it finds to have occurred. The Board shall
report the non-compliance to all members and to the Security Council and General
Assembly of the United Nations. See The Statute of the IAEA, International
Atomic Energy Association, https://www.iaea.org/about/statute#a1-12.
25. Zia Mian, Processes, Conditions and Stages for a Humanitarian Approach to
Achieve and Maintain a World Free of Nuclear Weapons (paper prepared for
Acronym Institute Workshop, Gilon, Switzerland, June 2324, 2011).
Carnegie Endowment for
International Peace

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network of policy research centers in Russia, China, Europe, the Middle
East, India, and the United States. Our mission, dating back more than a
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THE NUCLEAR
BAN TREATY
What Would Follow?
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